Open-source Overhauls Patent System

K-boy writes "The US Patent Office has announced new plans to reform the patent system - and right up there at the front is open-source software. Techworld argues that it is in fact open-source software that has been the driving force behind the reform." From the New York Times article: "At a meeting last month with companies and organizations that support open-source software (software that can be distributed and modified freely), including I.B.M., Red Hat, Novell and some universities, officials of the patent office discussed how to give patent examiners access to better information and other ways to issue higher-quality patents. Two of the initiatives would rely on recently developed Internet technologies. An open patent review program would set up a system on the patent office Web site where visitors could submit search criteria and subscribe to electronic alerts about patent applications in specific areas."

Comments

Surface changes only

[lastchance_000]

From a quick scan of the article, it appears the changes will affect searches for prior art only (which is a good improvement), but will not address the deeper problem of patents being issued for things like business processes. (One-click, anyone?)

Re: Surface changes only

[stinerman]

A federal law (or possibly an overreaching executive order) will be needed to eliminate business method patents. IIRC, some court decision made it so that business method patents are just as valid as mechanical ones.

i.b.m.?

[Anonymous Coward]

awww IBM's finaly growing up, it got its first three periods.

Doesn't solve major problems

[nattt]

Major issue with software patents cannot be solved by better searches for prior art - the only way to fix software patents is to do away with them in their entirety.

Fear this is anti-open-source (defense agains OS)

[Anonymous Coward]

From TFA: An open patent review program would set up a system on the patent office Web site where visitors could submit search criteria and subscribe to electronic alerts about patent applications in specific areas.

So basically this means open source projects are now liable for making sure they don't infringe on corporate patents.

I fear this seems like either lawyers creating a whole new industry that'll inflict expensive patent-searches and licensing deals on more projects; or SQ industry lobyiests trying to put more burdens on open source projects.

By making a whole bunch of legal game playing a required part of an open source project, MSFT will finally make Open Source development as bureaucratic as themselves.

A Troll in TFA

[Red Flayer]

"One frequent critic of the patent system, Gregory Aharonian, publisher of The Internet Patent News Service, said it was unlikely that the new initiatives would have a significant impact, because the patent office was not able to deal efficiently with the information it already had."

Let's see, give someone organized data and better search tools, and it won't help them search faster and more accurately?

Hey! My bike chain broke because my gears are not set properly. Let's not fix the gears, it's the chain that broke!

I'm not saying that information access is the only problem the patent system has. And I also understand that the three steps proposed are not a panacaea. But not taking steps to fix part of the problem. just because the problem exists? Ridiculous.

Re:A Troll in TFA

[aztracker1]

I think they should pump up the filing fee to enough for the PTO to hire skilled people to do due research on patents. make the filing fee like $10k by itself with no guarantee, then another $1k if approved... isn't it like reverse that now? if there was more to "lose" and a greater chance of not being approved, I think that would help.

Hell, google needs some business ideas, become a gov't consulting co to implement better search systems... that's what they're good at, let them spread their wings a bit.

Quick, patent these while you can!

[kimvette]

Please!

before the overhaul takes place will some do-no-evil company please patent the following:

  - flash advertisements which use sound

  - flash advertisements which take over your browser and shove themselves over the content you're trying to read

  - annoying flashing siezure-inducing animated GIF advertisements

and then sue every advertiser which uses that style ad for patent licensing fees, and commit to not use those style ads on any web site, EVER?

Thanks. This would be an appropriate use for patenting prior art. If you do this you will have my eternal appreciation.

Wow! Temporarily, a victory for OSS?

[CodeShark]

If this survives what I would predict to be a hugelobbying effort on the part of the massive corporate software interests, this could be the most significant reform of the Patent Office in my lifetime. [which is longer than I'd like to admit but shorter than the creation of digital computers].

I mean, since when has there been an "Open submission" for prior art in any of the USPTOs area of authority, or to have a searchable database for newly published applications that allows you, me, and everybody else to offer feedback directly to the examiners who need the information most [Note: I am including the patent quality index" under the heading of feedback by the way.]

From the Techworld article:The USPTO will host a public meeting to discuss the projects at its offices on 16 February.

I hope that RSM, ESR, etc. Lawrense Lessig et. all are there to defend this proposed change.

But it's an advance.

[Spy der Mann]

Remember!

If it's not a step backward, it's a step forward!

Later we can worry about elliminating software patents entirely.

Besides, take a look at this:

Another part will allow anyone who visits the USPTO website to search for patent information and receive emails regarding newly published patent applications. The program will also encourage the public to review patent applications and offer feedback to the USPTO regarding prior art.

The final leg of the program is a patent quality index. The index will assign a number to patent applications and patents indicating the quality of the patent. Members of the public can use the indexing system to evaluate the quality of proposed patents, patent holders can use it to identify weaknesses in their own patents, and companies can use the index to evaluate competitive patents relevant to a field they may be working in.

Not only can prior art be searched more effectively, the PEOPLE (this is, us!) can submit their comments about the patents in question. In other words, if an obvious software patent goes to slashdot, we, the slashdotters, can complain about it DIRECTLY!

And that's a good thing :)

Re:But it's an advance.

[Red Flayer]

"Members of the public can use the indexing system to evaluate the quality of proposed patents, patent holders can use it to identify weaknesses in their own patents, and companies can use the index to evaluate competitive patents relevant to a field they may be working in."

Who gave the slashcode to the patent office?

Re:But it's an advance.

[Anonymous Coward]

The argument against the validity of software patents lies in the fact that they are really mathematics patents. Except for the past 2 decades, math had always been placed deliberately out of bounds for the purpose of granting patents. My understanding on why is that math is simply too foundational for all other inventions across all science and engineering disciplines. For an extreme (okay, silly (I hope) :-) example, imagine the chilling effect patents would have on, say, algebraic identities.

Of course, with the invention and refinement of mechanical computers in last 50 years, the number, size, and specifity of mathematic expressions (i.e., programs) has grown at a even faster rate than, say, Moore's Law (IMO). Given the new world of software, it is possible that the historic reasons against patenting math have become obsolete. I don't think so but that's just me and, apparently, the patent office disagrees with me.

Re:But it's an advance.

[Peter La Casse]

This I don't get. Why should we limit the ability for an ingenius inventor to gain a government funded temporary monopoly for software, but not for a physical thing?

I can think of a few reasons. First, the three problems you note dominate all of the software patents that are issued, so eliminating software patents altogether would accomplish much more good than harm (and would be far easier to do too.) Second, software is essentially a number, and while we like to think that we have invented or created a piece of software, that number has always existed and will always exist, and numbers are not inventions. Third, software is essentially a sequence of instructions, and a recipe is not an invention. Fourth, the unique properties of software allow its development to be very rapid (compared to the development of physical products), and patents inhibit this rapid development, which has negative economic consequences. Remember that patents don't exist in a state of nature: they are an artificial creation designed to create economic benefit for society, and since software patents' economic harm exceeds their economic benefit, they're counterproductive.

Without patents there is little incentive (ie money) for new products to be made.

Nonsense. I can think of plenty of reasons to innovate and to create new products other than their potential patentability.

Re:But it's an advance.

[mavenguy]

Actually, this has been expressly held by the SCOTUS, in Gottschalk v. Benson, which reversed the Court of Customs and Patent Appeals (CCPA), the court that then took appeals from the Patent Office's Board of Appeals. The CCPA, and its current successor, the Court of Appeals for the Federal Circuit (CAFC) has been the driving force to extend the definition of patentable subject matter as far and wide as possible, so this reversal was like a "slap in the face" to them.

After a stumble or two they then reacted by reading Benson as narrowly as possible, partuclarly paying attention to the Benson holding which included the adjective "mathematical", and reversed a subsequent Board rejection affirmance for a program directed to, IIRC, natural language manipulation. The result has been, virtually, to permit anything, since all you have to do is point out some actual use beyond just abstract mathematics. The business method stuff, of course, is not specifically tied to software, so they easily could apply their philosophy in the State Street case and just extend it further.

If the SCOTUS can't be persuaded to correct this, then it will take Congress to fix this, and that's not, currently, very likely.

Worse than surface changes

[Anonymous Coward]

I fear this seems pro-corporate and anti-F/OSS. What it really seems to do is impose a new bureaucratic process on F/OSS projects by making them responsible for finding the bogus patents they may infringe on (and by finding them, making them responsible for willful infringement). It does nothing to reduce the stupidly bogus patents (XOR for a cursor) from happening in the first place -- on the contrary it makes it more difficult to avoid them.

What would be pro-F/OSS would be if the patent office provided a way that F/OSS projects could point out prior art on the large numbers of obvious&non-innovative pending patents more easily. But with industry lobbyests running the show, there's 0 chance that this will happen.

Declining Quality of Patent Examiners

[Jazzer_Techie]

Obiviously the patent office needs to return to the example set in early 20th century Europe (e.g. Bern). They were hiring people like Einstein to examine patents. I don't see the USPTO working to recuit brilliant young physicists.

Simple solution?

[LightningBolt!]

If there were an official website where patent applications were scrutinized and commented on by the public, I'd bet a lot more patent applications would be thrown out due to prior art. Here on slashdot, every time some patent is mentioned at all, there's some cranky old technology guy who remembers doing the same thing back in '78 on some project at Fubartronics Inc. Further, competing companies would have the incentive to do the research to find solid prior art and comment on it.

Google search technology

[ajdavis]

Google had participated in the discussions and it was possible that its search technology would be used in the project.

Meaning, patent examiners will now Google the phrase "customer review" before saying, "Gosh, what an original idea!"

In other news, patent examiners' computers will now have web access...

At Last

[johnashby]

This is a tremendous decision. In order for it to have taken place at all, there must already be an element friendly to open-source concepts in the higher circles...and the expansion of staff necessary to implement these changes will alter the culture of the Office at large. Water cooler conversations will change, and the current bias toward approving patenting anythign that moves might finally begin to erode somewhat.

It's an excellent beginning.

Not enough

[voice_of_all_reason]

Any fix of the patent system that doesn't address all the outstanding issues is a waste of time. I'm specifically looking for a solution involving the phrases "crush the patent office", "see them driven before me", and "hear the lamentation of the women"

deja vu...

[revery]

I think all the patents should be put in a queue that is visible to the public and that we can moderate. Also, maybe there should be a limit on how many patent submissions you can make in a day, or a week, or something. And I don't think Roland Piquepaille or Beatles Beatles should be able to patent anything.

Wait... didn't we already have this discussion today?

Reform?

[amightywind]

An open patent review program would set up a system on the patent office Web site where visitors could submit search criteria and subscribe to electronic alerts about patent applications in specific areas.

This will only make anti-innovation patent enforcement more efficient. Great for patent holders (and the Patent Office I might add). Lousy for everyone else. I was hoping they would consider rescinding all software patents.

Rome wasn't built in a day . . .

[mmell]

and they didn't have to clear away the rubble of a previous city before they got started.

You might want to cut 'em a little slack - if their first effort at patent reform falls short, then it's up to us to give 'em another nudge in the right direction. Until then, it might make sense to just watch and see.

I for one...

[oscartheduck]

I for one would like to congratulate our Open Source Geek overlords. Yes, I mean you, you GNU/Linux running geeks you. This isn't the radical overhaul that the patent system needs, but it's something, and it's a clear sign that our commitment to ideas and ideals that we know make sense can have an effect if we keep with them and keep pushing the good word.

Your Sig: The 9th Amendment

[hackwrench]

Yeah, the Courts pretend that the 9th amendment doesn't exist, or the debate over the "right to privacy" in the Roe vs. Wade case in the Supreme Court would not have happened. I wonder what would have happened if somebody sat them down and said, "Of course the right to privacy exists, read the 9th Amendment!" Yeah, I thought as much.

Re:Your Sig: The 9th Amendment

[cpt kangarooski]

Have you read Roe v. Wade?

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Generally though, no matter what source you're using for the right to privacy, the question becomes one of due process -- whether an imposition on someone's rights is allowable given some competing state interest.

Re:Your Sig: The 9th Amendment

[hackstraw]

Have you read Roe v. Wade?

The Constitution does not explicitly mention any right of privacy.

Keep in mind that the US Constitution is the longest standing constitution in the world, and US is not a very old country. "Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough (most any new law regarding computers is basically redundant. fraud is a very inclusive law that is not used enough, etc).

The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere. I'm a little (lot) on the liberal side of people's rights, and I believe that privacy is one of them. I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.

If I don't have the right to privacy, ... this does not make sense.

Unless I am a harm to someone or myself as defined by a law and the law is followed by due process, then privacy is implied. (YAIMNAL).

To test the opposite, where is it explained that the government allowed to invade privacy? Baring due process and reasonable limits to protect others.

Re:Your Sig: The 9th Amendment

[cpt kangarooski]

"Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough

It often depends on what you're trying to accomplish. In any event, I don't have a problem with the federal constitution being as open to interpretation as it is.

The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere.

No, it doesn't. You're probably thinking of the 9th Amendment, but that reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.

Sounds like you find a right of privacy in the penumbra of the Bill of Rights. I agree with you, not that I think that there's any reason to feel that there is only one right answer. BTW, you do know that the indented portion of the earlier post was a direct quote of Roe v. Wade, and not my own words, right?

Unless I am a harm to someone or myself as defined by a law and the law is followed by due process, then privacy is implied. (YAIMNAL).

FYI, there are two kinds of due process, procedural (which is the kind you're likely thinking of there) and substantive. Procedural due process requires that if the government takes action that impairs your life, liberty, or property, they have to go about it the right way, e.g. by going to court. Substantive due process requires that the government cannot take such action unless it has a sufficiently strong reason for doing so, as compared to the strength of your right to life, liberty, or property. For example, they can't execute you for jaywalking, because the government doesn't have a sufficiently strong interest in deterring jaywalking to outweigh your right to live. OTOH, they could probably ticket you and prohibit jaywalking, because your interests then are considerably less.

Also, what is YAIMNAL?

Too late - I already patented it!

[tomhudson]

1. Patent "other ways to issue higher-quality patents"
2. Profit!
3. Squander profits by commissioning stories to be posted on slashdot on Troll Tuesdays :-)

... well, if it works for them ...

Nice, but what about obviousness?

[Bob9113]

This is nice, but the real problem with patents today is not novelty, it is obviousness. The article implies that the obviousness problem is not being addressed. The worst patents in recent memory have been bad because they were obvious, not because they had been done before. One-click was novel (as proven when the prior art challenge failed). One-click was not non-obvious. Obviousness cannot be tested by patent examiners; they are not skilled in the art.

I recently read what seems like a good solution; when a patent is submitted it must be tested for obviousness. Submit the problem that the patent solves to a panel of experts. If they come up with a sufficiently similar solution, the patent is void. Funding? Submitters who get their patents voided for obviousness pay the expense of the panel - calculate the cost at the end of the year and divvy it among the applicants. That has the added bonus of penalizing patent flooders, and since there will still be rivers of patents coming from IBM and MS, the individual patent submitter will only risk a tiny fraction of the cost of the board.

Re:Nice, but what about obviousness?

[mavenguy]

Obviousness cannot be tested by patent examiners

No, it's done all the time; it's part of their job. Examiners determinine patentability of each claim against the prior art of record using, among others, 35 USC 103 as interpreted by relevant case law they are not skilled in the art This is true. They cannot establish prior art (well, thechnically, they could under some very rare instances; I'm not aware of even one occurance, however). It's the cited prior art that must not only show the invention, or relavant parts thereof, but also, practially, establish the level of ordinary skill in the art.

Now, 103 rejections usually involve citing two or more prior art references (generally if you copuld show the claimed invention existing in one reference it would be a case of anticipation under 35 USC 102), and the crux of the issue is establishing why this would be obvious to one of ordinary skill in the art.

In the "good old days" examiners were give a great deal of respect in their opinions that two or more references could be "combined" to establish a determination of obviousness. However, the patent bar has pounded and pounded on this over the years, and, they finally got to the Court of Appeals for the Federal Circuit (CAFC) to establish that the cited prior art has to explicitly establish a "motivation" that would lead one to "combine the teachings of two (or more) references together"

What this has meant, in practice, is that many reference sets that could be combined in the past to make a 103 rejection that was likely to be upheld, are no longer valid. This has the general effect to require a) longer searches to find not only the right bare description of some feature, but also a "teaching" of the significance of the feature. The examiner's "handwaving" is no longer legally accepted to support an obviousness rejection.

Given that the time alloted per application has not changed in over 30 years, and that all the effectiveness of new search technology developed in this time period has been erroded by all kinds of additional, non-productive crap that takes a toll from searching and considering the application, it is little wonder that more crap gets issued; examiners that fail to keep up their production are shown the door (much more than almost any other federal job)

Peer to patent

[andyo]

A more extensive proposal for opening the approval system is Peer to Patent.

It may work best for prior art, resembling one of the systems discussed in the article.

Groklaw

[just_another_sean]

As usual there is great information on this at Groklaw.

Apperently the PTO and the companies they are working with are looking for input from the general community so here's a chance to have your $.02 heard somewhere else besides /.

Per PJ:

I know from your comments that some of you feel that the only solution is to get rid of software patents altogether, and if you can accomplish that, feel free. But others of you have expressed the thought that high quality patents are legitimate, for ideas that are truly innovative and represent real scientific progress. Think what it means that the USPTO is participating and asking for your help.

Re:Wow! Temporarily, a victory for OSS?

[kansas1051]

"I mean, since when has there been an "Open submission" for prior art in any of the USPTOs area of authority"

Since 1790. The current "proposal" is nothing new, its just a more effective way of submitting third party prior art. The current and long standing USPTO rules for public submissions of prior art can be found here: http://www.uspto.gov/web/offices/pac/mpep/document s/1100_1134_01.htm

Also, the current proposal does not allow third parties (the public) to submit comments after an application publishes (which of course would be most helpful) due to the confidentiality required by federal law (35 USC 122: http://www.uspto.gov/web/offices/pac/mpep/document s/1100_1120.htm).
So if you see an application publish that you know is anticipated by prior art there isn't anything you can do about it until the application issues into a patent (in which case you can pay 10k-100k for a reexamination).

Software is not patentable....

[3seas]

By its very nature software falls into the scope of what is not patentable.

Physical Phenomenon
Natural Law
Abstract Ideas.

Mathmatical algorythims are a subtopic of the above three primary facets of what is not patentable.

Haven't the time at the moment to read the article but I don't need to. I know software is provably not patentable.

How software got patent status in teh US is not by approval of the people, but by the abstract rethoric of abstract arguement.

Software creation is all about abstraction creation and manipulation.

This alone make its a a human right and duty to apply. For we as creatures able to go beyond other creatures have only this as our advantage enabling us to go beyond the limits other creatures have.

Software is not patentable and there are more details as to why this is and provable, then I have time to go into ATM.

We only advance by building upon the works of those before us. Why falsely limit that process and increasing rate of? Ity is not consistant with what we are.

Reform???? What we need is correction in accord with what is not patentable.

Some of you are missing the point

[ZB Mowrey]

Those who say this is worthless because it doesn't completely fix all your problems with the system, should evaluate the following:

"All these incremental fixes to Firefox are just annoying. I wish they'd just get over it and release version 5.1 *right now*. Anything else is a waste of time and effort."

Change at this level of society doesn't come in an avalanche, it's an incremental, patch-like process. This is done to minimize harm to the basic structure of society, which after all has fed and educated some of us, despite its flaws. I don't know how many others like me are out there, but I know I've been hoping for exactly this kind of open review for patents for a long time. Now hobbyists and competing commercial interests will have the ability and incentive to help crush some of the utterly stupid patents that get granted.

Other interesting developments in Patent Reform

[Unequivocal]

I found these interesting links about more patent reform work out there. The first one is a partnership between IBM and some university people on building some kind of peer review patent system. Looks very interesting:

http://dotank.nyls.edu/communitypatent

Second is an article by one of the university people with more details on this (PDF warning):

http://peertopatent.jot.com/WikiHome/PeerToPatent- BethNoveck.pdf

Recently developed?

[c0d3h4x0r]

recently developed Internet technologies

Database-driven web sites and web forms? It's recent in geological terms, I suppose.

Re:Recently developed?

[glwtta]

I figured the two technologies were Google and Wikipedia...